Federal Register: September 13, 2002 (Volume 67, Number 178)
Proposed Rules
Page 57994-58006
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 375 and 388
[Docket Nos. RM02-4-000, PL02-1-000]
Critical Energy Infrastructure Information
September 5, 2002.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of proposed rulemaking and revised statement of policy.
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SUMMARY: The Federal Energy Regulatory Commission is proposing to
revise its regulations to restrict public availability of critical
energy infrastructure information. The Commission issued a policy
statement in Docket No. PL02-1-000 on October 11, 2001, removing from
easy public access previously public documents that detail the
specifications of energy facilities licensed or certificated by the
Commission.\1\ The Commission is revising this policy to include
documents that detail specifications of
[[Page 57995]]
proposed energy facilities as well. The original policy statement
directed requesters seeking this information to follow the Freedom of
Information Act (FOIA) procedures found at 18 CFR 388.108.
Specifically, the Commission proposes to change its regulations to
restrict unfettered general public access to critical energy
infrastructure information, but still permit those with a need for the
information to obtain it in an efficient manner. The proposed new
access procedures complement existing rights under the FOIA. Requesters
retain the right to file a FOIA request for any information not
available through the Public Reference Room, the Internet, or publicly-
accessible databases. The Commission also proposes establishment of a
Critical Energy Infrastructure Information Coordinator to process and
make decisions on non-FOIA requests for critical energy infrastructure
information.
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\1\ Statement of Policy on Treatment of Previously Public
Documents, 66 FR 52917, Oct. 18, 2001.
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An important objective of the proposed rule is the reconciliation
of the Commission's regulatory responsibilities under its enabling
statutes and Federal environmental laws and the need to protect the
safety and well being of American citizens from attacks on our nation's
energy infrastructure.
Under the proposal, new sections will be added to Parts 375 and 388
of Title 18 of the Code of Federal Regulations, and 18 CFR 388.112 will
be revised to implement the new procedures.
DATES: Comments are due October 15, 2002.
ADDRESSES: File written comments with the Office of the Secretary,
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426. Comments should reference Docket Nos. RM02-4-000
and PL02-1-000. Comments may be filed electronically or by paper (an
original and 14 copies, with an accompanying computer diskette in the
prescribed format requested).
FOR FURTHER INFORMATION CONTACT: Carol C. Johnson, Office of the
General Counsel, Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426, (202) 502-8521.
SUPPLEMENTARY INFORMATION:
Statement of Policy on Treatment of Previously Public Documents; Notice
of Proposed Rulemaking and Revised Statement of Policy on Previously
Public Documents
I. Introduction
1. In this notice of proposed rulemaking (NOPR), the Federal Energy
Regulatory Commission (Commission) proposes specific changes to the
Commission's regulations to address the appropriate treatment of
critical energy infrastructure information (CEII) in the aftermath of
the September 11, 2001 terrorist attacks on the United States of
America. Under the Policy Statement issued in Docket No. PL02-1-000 on
October 11, 2001 (Policy Statement), the Commission removed from easy
public access certain documents that previously had been public. See IV
FERC Stats. & Regs. ] 35,542. On January 16, 2002, the Commission
issued a Notice of Inquiry (NOI) in RM02-4-000 to determine what
changes, if any, should be made to its regulations to restrict
unfettered general public access to critical energy infrastructure
information, but still permit those with a need for the information to
obtain it in an efficient manner. See IV FERC Stats. & Regs. ] 35,542.
The rule proposed here would reconcile the Commission's regulatory
responsibilities under its enabling statutes and Federal environmental
laws with the need to protect the safety and well-being of American
citizens from attacks on our nation's energy infrastructure.
2. The proposed rule would also offer a long-term and more
efficient alternative to handling requests for previously public
documents than does the Freedom of Information Act (FOIA), 5 U.S.C.
552, which the Policy Statement established as the short-term method
for requesting previously public documents. In the Commission's view,
the FOIA process is not well suited in the long run for handling most
requests for CEII. Information that fits within the proposed definition
of CEII is exempt from mandatory disclosure under the FOIA. When
determining whether to release information under the FOIA, the agency
may not consider a requester's particular need for the information.
Moreover, once the agency releases the information to one requester
under the FOIA, it generally must release it to all requesters. In
addition, the agency may not restrict the recipient's use or
dissemination of that information. Therefore, if the Commission wishes
to make otherwise exempt information available to a particular
requester based on that requester's need for the information, or wishes
to limit the recipient's use and dissemination of exempt information,
it must do so outside of the confines of the FOIA. To that end, the
Commission proposes to add Sec. 375.313 to its regulations to
authorize a Critical Energy Infrastructure Information Coordinator to
process non-FOIA requests for CEII and make determinations regarding
such requests. Of course, requesters always retain the option of
seeking information under the FOIA. Assuming that much of the
information removed from public access will be exempt from mandatory
disclosure under the FOIA, using the FOIA as the exclusive mechanism
for determining release would mean that people with a need for the
information likely would be denied access to exempt information.
3. Finally, the Policy Statement specified that the Commission was
removing from easy public access documents containing detailed
specifications of energy facilities licensed or certificated by the
Commission. The Commission has concluded that the more sensible
approach is not to differentiate between proposed facilities and those
that have been licensed or certificated; accordingly, the proposed rule
would expand the definition of CEII to encompass proposed projects as
well as certificated, licensed, or constructed projects. The Commission
believes that this approach should also be followed while it considers
the comments filed on the NOPR, and hereby revises the PL02-1 Policy
Statement to restrict public access to documents containing detailed
specifications of proposed facilities as well. The Commission also has
decided that location information should not be treated as CEII, and
will begin making such information publicly available as soon as
practicable.
II. Background
A. The Policy Statement
4. As noted, the September 11, 2001 terrorist attacks prompted the
Commission to issue a policy statement on October 11, 2001, in PL02-1-
000, addressing the treatment of previously public documents. See 97
FERC ] 61,030.\2\ The Commission announced there that it would no
longer make available to the public through its Internet site, the
Records and Information Management System (RIMS, which has been
replaced by the Federal Energy Regulatory Records Information
[[Page 57996]]
System (FERRIS)), or the Public Reference Room, documents such as
oversized maps that detail the specifications of energy facilities
already licensed or certificated under Part I of the Federal Power Act,
16 U.S.C. 719a, et seq., and Section 7(c) of the Natural Gas Act, 15
U.S.C. 717f(c), respectively. Rather, anyone requesting such documents
was directed to follow the procedures set forth in 18 CFR 388.108
(Requests for Commission records not available through the Public
Reference Room (FOIA Requests)). The Policy Statement also instructed
staff to report back to the Commission within 90 days on the impact of
this newly announced policy on the agency's business.
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\2\ Shortly after the attacks, the Commission issued another
policy statement in Docket No. PL01-6-000, in which it provided
guidance to regulated companies regarding extraordinary expenditures
necessary to safeguard national energy supplies. See 96 FERC ]
61,299 (2001). The Commission recognized there that electric, gas,
and oil companies may need to adopt new procedures, update existing
procedures, and install facilities to further safeguard their
systems, and that these efforts might result in extraordinary
expenditures. The Commission assured these companies that it would
give its highest priority to processing any filing made for the
recovery of such expenditures.
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B. Implementation of the Policy Statement
5. The Commission's experience subsequent to the issuance of the
Policy Statement has naturally informed its decision here to issue a
notice of proposed rulemaking. To implement the policy, the
Commission's staff first disabled RIMS access to all oversized
documents, which frequently contain detailed infrastructure
information, and also removed them from the Public Reference Room.
Staff next identified and disabled or denied access to other types of
documents dealing with licensed or exempt hydropower projects,
certificated natural gas pipelines, and electric transmission lines
that appeared likely to include critical energy infrastructure
information. This effort, which was undertaken as cautiously and
methodically as possible, affected tens of thousands of documents.
6. As of August 15, 2002, the Commission had received 188 FOIA
requests for documents that previously had been public. Upon closer
examination, the Commission's staff ascertained that seven of those
requests involved documents that contained nothing critical, and
released them accordingly. Staff contacted requesters in 29 other
cases, and was able to negotiate to enable the requesters to obtain the
documents directly from the companies which had created the documents
or from the Commission subject to a non-disclosure statement.\3\ These
requesters, who were frequently parties in relevant FERC proceedings or
affected landowners, thus withdrew their requests. Seven others also
withdrew their requests for no known reason, although a fair assumption
is that they were able to obtain the requested documents from the
document creators. The Commission has denied in whole or in part 138
requests, invoking in particular FOIA Exemption 7F, 5 U.S.C.
552(b)(7)(F), as well as Exemption 2, 5 U.S.C. 552(b)(2), and Exemption
4, 5 U.S.C. 552(b)(4).\4\ To date, no one has filed an administrative
appeal of the decisions to withhold documents, although the time for
many of the recently processed ones is still running. Finally, the
Commission is currently processing the remaining seven requests.\5\
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\3\ Several of the early negotiated FOIA requests were from
licensees or certificate holders themselves. These companies
obviously are unique, as they must have certain information to
comply with their licenses or certificates, and have an interest
comparable to the Commission's to protect CEII. See discussion in
NOI, IV FERC Stats. & Regs. ] 35,542 at p. 35,826. As a consequence,
staff eventually began to deal directly with licensees and
certificate holders outside of FOIA to ensure that they received the
requisite information. Staff has also been working directly with
other Federal agencies, which are not subject ``persons'' under the
FOIA and, therefore, may not make FOIA requests. In this regard,
where staff has released previously public documents, it has
reminded the other Federal agencies of their obligation under the
Federal Records Act, 44 U.S.C. sec. 3510(b), to treat the
information as FERC would treat it, viz., as confidential.
\4\ These exemptions are discussed in greater detail below. See
also infra note 40 for a discussion of Commission action regarding
FERC Form No. 715, requests for which constitute a major portion of
the PL02-1 FOIA dockets.
\5\ In addition, as discussed in the NOI at p. 35,826, the
Commission has in effect granted a company's request to remove what
in its view was critical infrastructure information which had not
been removed from public access as part of the staff's efforts to
implement the policy on previously public documents. See Williston
Basin Interstate Pipeline Company, 97 FERC ] 61, 369 (2001). The
Commission has also recognized that companies may seek waiver of any
requirements to make critical energy infrastructure information
widely available to the public. See Order on Interim Treatment of
Information Collected in Form No. 715, 100 FERC ] 61,141, slip. op.
at p. 7, n.3 (2002).
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C. The Notice of Inquiry
7. Taking all these matters into consideration, the Commission
issued a Notice of Inquiry (NOI) on January 16, 2002. See IV FERC
Stats. & Regs. ] 35,542. The NOI set forth the Commission's general
views on how it intends to treat previously public documents, and asked
specific questions on the scope and implications of maintaining the
confidentiality of certain documents that previously had been made
public but were removed from easy public access on October 11, 2001.
Approximately 50 entities responded to the NOI.\6\ A few respondents
made at least a portion of their filings non-public.
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\6\ The Appendix provides a list of respondents.
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8. In addition, the Commission used the opportunity of the NOI to
provide guidance on making filings with the Commission to the companies
whose facilities could be the targets of terrorist attacks. Between
January 2002 and the effective date of a final decision in Docket No.
RM02-4-000, these companies were advised that they could seek
confidential treatment of filings or parts of filings that, in their
opinion, contain CEII. For this purpose, companies were directed to
follow the procedures in 18 CFR 388.112, and also clearly note ``PL02-
1'' on the first page of the document.
III. Discussion
A. The Need for Action
9. A threshold issue emerged from the responses as to whether the
Commission should continue to protect CEII. Although some responses
opposed the steps the Commission took in PL02-1 to protect
information,\7\ the majority of the respondents supported the
Commission's goal of increasing protection to the infrastructure, and,
to varying degrees, the steps the Commission has taken to date.\8\
After careful consideration of the responses and its regulatory
responsibilities, the Commission believes that it has an obligation to
safeguard information vital to protect the nation's energy
infrastructure. Accordingly, the Commission has decided to proceed with
this NOPR, which clarifies the types of information that may be
protected, proposes procedures for submitting and requesting
confidential treatment of CEII, and suggests a method for handling
challenges to CEII status.
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\7\ See, e.g., American Library Association, Platts, and Public
Citizen Litigation Group.
\8\ See, e.g., Atlanta Gas Light Cos. at p. 2, Duke Energy
Trading Group at p. 2, Duquesne Light Co. at p. 1, Edison Electric
Institute at p. 4, New York State Public Service Commission at p. 2,
NiSource Pipelines at p. 2, Public Utility District No. 1 of Chelan
County, WA at p. 1, Reliant Resources, Inc. at p. 1, Southern
California Edison Co. at p. 2, and Southern Co. Services, Inc. at p.
4.
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B. Legal Authority To Protect CEII
1. Freedom of Information Act
10. It was apparent from the responses received that the NOI did
not sufficiently explain that the Commission intended to deny public
access only to information that was exempt from disclosure under the
FOIA. The Commission has no intention of adopting an approach that
would ignore the agency's obligations under the FOIA, which requires
that all non-exempt information to be made available to the public.
Indeed, the discussion in the NOI was premised on the assumption that
CEII would include only information exempt from disclosure under FOIA,
and, with this in mind, invited comment on which
[[Page 57997]]
exemptions might be applicable to protect information that would be
useful to those planning attacks on the energy infrastructure.
Accordingly, as now discussed, most respondents expressed their views
on the FOIA exemptions. Although a few respondents cited other
exemptions,\9\ the following discussion focuses on the exemptions most
likely to apply to CEII, namely Exemptions 2, 4 and 7.
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\9\ See, e.g., Exemption 1 (EEI at p. 8, MidAmerican Energy Co.
at p. 7, Southern Co. Services, Inc. at pp. 15-16, and Washington
Legal Foundation at p. 6) and Exemption 5 (Bonneville Power
Administration at p. 7).
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a. Exemption 2
Exemption 2 exempts from disclosure ``records related solely to the
internal personnel rules and practices of an agency.'' \10\ According
to guidance from the Department of Justice (DOJ), ``[a]ny agency
assessment of, or statement regarding, the vulnerability of such a
critical asset should be protected pursuant to Exemption 2.'' \11\ DOJ
has counseled agencies that ``a wide range of information can be
withheld under Exemption 2's `circumvention' aspect.'' \12\ DOJ also
has instructed agencies to take full advantage of the breadth of
Exemption 2's protection for critical infrastructure information.\13\
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\10\ 5 U.S.C. 552(b)(2).
\11\ DOJ 2001 FOIA Post 19, posted October 15, 2001. DOJ is the
Federal agency responsible for the administration of the FOIA.
\12\ Id.
\13\ Id.
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11. Several respondents contended that CEII qualifies for
protection under Exemption 2.\14\ Other respondents questioned whether
Exemption 2 covers the types of information removed from public access
under PL02-1.\15\ The Commission believes that a portion of the CEII
removed from public access may be exempt from disclosure under
Exemption 2 of FOIA. Illustratively, the Commission is expanding its
efforts help facility owners and operators assess security risks and
protect facilities from attack.\16\ Information developed or created by
the Commission as part of these efforts is quite likely to fall within
the ambit of Exemption 2. Documents describing inspections of regulated
facilities likewise may fall within Exemption 2.
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\14\ See, e.g., Central Maine Power at pp. 4-5, Exelon Corp. at
p. 5, Mid-Continent Area Power Pool at p. 2, Member Systems at p. 6,
MidAmerican Energy Co. at p. 7, and Southern Co. Services, Inc. at
pp. 15-18.
\15\ See, e.g., American Public Power Association at p. 9,
Public Utilities Commissions at p. 5, Platts at p. 4, Public Citizen
at pp. 4-5, Utilities Commission, City of New Smyrna Beach, Florida
at p. 7, and Washington Legal Foundation at p. 5.
\16\ The Commission has jurisdiction over the safety of
hydroelectric projects under secs. 4(e), 10(a) and 10(c) of the
Federal Power Act, 16 U.S.C. 797(e), 803(a), (c).
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b. Exemption 4
12. Exemption 4 protects from public disclosure ``trade secrets and
commercial or financial information obtained from a person and
privileged or confidential.'' \17\ Most of the respondents who favored
non-public treatment for CEII believed that such information was exempt
from disclosure under Exemption 4.\18\ Again, there were a few
respondents who questioned whether CEII was entitled to protection
under Exemption 4.\19\ The Commission has determined that much of the
information that may be withheld as CEII may fall within the scope of
Exemption 4, because release of the information could cause competitive
harm to submitters, impair the Commission's ability to obtain similar
information in the future, or impair the effectiveness of the
Commission's programs.
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\17\ 5 U.S.C. 552(b)(4).
\18\ See, e.g., Central Maine Power at pp. 4-5, Exelon at pp. 5-
6, Member Systems at p. 6, MidAmerican Energy Co. at p. 7, Reliant
Energy HL & P at p. 11, Southern California Edison Co. at p. 9,
Southern Company Services, Inc. at pp. 12, 15, 20-25, and Washington
Legal Foundation at p. 6.
\19\ See, e.g., American Public Power Association at pp. 9-10,
Public Utility Commissions at p. 5, Platts at p. 4, Public Citizen
at pp. 5-6, and Utilities Commission, City of New Smyrna Beach,
Florida at p. 7.
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13. Respondents raised two issues regarding the application of
Exemption 4 to CEII. First, several respondents questioned whether the
fact that this sort of information had been publicly available in the
past undermines an argument that it is now confidential.\20\ As
discussed in greater detail below, it does not. Americans live in a
different world today than they did a year ago. Americans have had to
face the harsh realities of terrorism on their soil. This has forced
the nation to reassess its vulnerability to terrorist threats.
Government agencies as well as private companies have had to reconsider
the extent to which they make information freely available to others.
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\20\ See e.g., American Public Power Association at pp. 9-10,
and Public Citizen at pp. 5-6.
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14. Specifically, under National Parks & Conservation Assoc. v.
Morton, 49 F.2d 765 (D.C. Cir. 1974) and Critical Mass Energy Project
v. NRC, 975 F.2d 871 (D.C. Cir. 1992), the initial inquiry in Exemption
4 cases is whether the information was submitted to the government
voluntarily or whether it was compelled to be submitted. For voluntary
submissions, the information is entitled to protection if it ``would
customarily not be released to the public by the person from whom it
was obtained.'' \21\ This test understandably focuses on the
submitter's current treatment of the information, not past treatment.
Therefore, if, in the post-September 11 world, the company would not
release the information to the public, the Commission should not
release the information.
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\21\ Critical Mass, 975 F.2d at 878.
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15. For compelled submissions, there is a three-pronged test--the
competitive harm prong, the impairment prong, and the program
effectiveness prong. If any of the three tests is met, the information
is exempt from mandatory disclosure under FOIA even though it may have
been previously public.\22\ Under the competitive harm prong, there
must be evidence of actual competition, and a likelihood of substantial
competitive injury. See CNA Fin. Corp. v. Donovan, 830 F.2d 1132 (D.C.
Cir. 1987). This inquiry tends to be fact specific, so it is not
possible to identify with certainty which categories of information
would meet the test. However, as utilities transition from monopolies
to competitive markets, it may be easier for them to demonstrate actual
competition. The inquiry would be whether the submitter is facing
competition at the time the Commission received the request for the
information, not whether there was competition when the information was
first submitted to the Commission. If the competitive situation has
changed, the likelihood of competitive harm would be analyzed using the
current situation, not past conditions. Where competition is found to
exist, the next issue is whether release of the information is likely
to result in substantial competitive injury to the submitter. Again,
the likelihood
[[Page 57998]]
of competitive injury would be examined at the time the Commission
received the request for the information. Whether the information could
have harmed the submitter two years earlier is irrelevant; what is
relevant is whether release of the information at the time of the
request would cause competitive harm to the submitter.\23\
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\22\ While most of the submissions to a regulatory agency like
FERC may appear to be compelled, this may not necessarily be the
case. The D.C. Circuit in McDonnell Douglas Corp. v. NASA, 180 F.3d
303, 305-06 (D.C. Cir 1999), questioned whether DOJ had taken an
unduly restrictive interpretation of voluntarily submissions by
instructing agencies to treat most information given to the
government as required. DOJ itself has since recognized that the
``existence of agency authority to require submission of information
does not automatically mean such a submission is `required'; the
agency authority must actually be exercised in order for a
particular submission to be deemed `required.' '' DOJ Freedom of
Information Act Guide & Privacy Act Overview, May 2002 ed., at 202.
Courts have even found submissions to be voluntary where the agency
had issued a subpoena but not sought to enforce it, see McDonnell
Douglas Corp. v. EEOC, 922 F. Supp. 235 (E.D. Mo. 1996), and where
the agency did not have authority to enforce the information
collection because the information request violated the Paperwork
Reduction Act, 44 U.S.C. 3501, see Center for Auto Safety v. NHTSA,
244 F.3d 144 (D.C. Cir. 2001). At bottom, the question of whether
the information has been submitted voluntarily or was compelled must
be analyzed on a case by case basis.
\23\ The Commission's analysis of a submitter's competitive
situation under FOIA is not the same as, and indeed is less rigid
than, the analysis it must perform to establish lack of market power
for charging market based rates. For FOIA purposes, the competition
requirement is satisfied if the submitter faces some level of actual
competition. See Niagara Mohawk Power Corp. v. DOE, 169 F.3d 16, 19
(D.D.C. 1999).
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16. The test most frequently applied under the competitive harm
prong is whether use of the information by competitors is likely to
harm the submitter. See, e.g., CNA, 830 F.2d at 1152 & n.158; Public
Citizen Health Research Group v. FDA, 704 F.2d 1280, 1291 (D.C. Cir.
1983). This may be fairly challenging to demonstrate in the case of
CEII because the primary concern is that the information could be used
to plan an attack on the infrastructure, not that it could be used to
steal customers or undercut prices. On the other hand, a submitter may
be able to show competitive harm where use of the information by
someone other than a competitor could cause financial harm to the
submitter. Cf. McDonnell Douglas Corp. v. NASA, 180 F.3d 303, 306-07
(D.C. Cir. 1999) (competitive harm where release of prices could be
used by customers to negotiate lower prices). As relevant here, a
terrorist attack on the energy infrastructure could cause financial
harm to the owners and operators of the facilities because of lost
opportunity costs as well as repair costs.
17. For compelled submissions, the impairment prong is satisfied
where disclosure may affect the reliability or quality of the
information received.\24\ The more subjective the filing requirement,
the more likely that disclosure of the information could impair the
Commission's ability to get thorough and accurate information in the
future. See Niagara Mohawk, 169 F.3d at 18 (holding that impairment is
unlikely to be found where ``data sought appears to take the form of
hard, cold numbers on energy use and production, the fudging of which
may strain all but the deliberately mendacious.''). As noted by Edison
Electric Institute (EEI), regulated entities may have discretion
regarding how to construct their filings.\25\ If companies are worried
that information they submit will be subject to public disclosure, they
may choose not to submit the same level of detail that they might
otherwise submit. In such circumstances, and assuming the submissions
would otherwise comply with the Commission's regulations, the
information may be exempt from disclosure under the impairment prong of
Exemption 4.
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\24\ Id.
\25\ EEI at p. 42.
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18. Critical Mass recognized that in addition to the competitive
harm and impairment prongs, there may be other instances where non-
disclosure is warranted in order to protect other governmental
interests, such as program effectiveness.\26\ Recently, in Public
Citizen Health Research Group v. NIH,\27\ the district court relied on
Critical Mass in determining that ``impairment of the effectiveness of
a government program is a proper factor for consideration in conducting
an analysis under'' Exemption 4. The court held that the National
Institute of Health's royalty information was protected under Exemption
4 because release of the information would make companies reluctant to
enter into agreements with NIH, thus impairing the effectiveness of
NIH's licensing program.\28\ The court reached a similar conclusion in
Judicial Watch, Inc. v. Export-Import Bank, where release of certain
financial information from foreign export credit agencies was held to
be exempt from disclosure because release would make the credit
agencies look for financing outside of the United States, undermining
the agency's statutory purpose of fostering domestic economic growth by
supporting export transactions.\29\
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\26\ See Critical Mass, 975 F.2d 879 (``It should be evident
from this review that the two interests identified in that National
Parks test are not exclusive.'').
\27\ No. 00-1847, 2002 U.S. Dist. LEXIS 7457, at *42 (D.D.C.
Mar. 12, 2002) (alternative holding).
\28\ Id. at *45-49.
\29\ 108 F. Supp. 2d 19, 30 (D.D.C. 2000).
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19. Applying these recent decisions here, release of CEII could
threaten the effectiveness of the Commission's programs, which are
meant to satisfy its mandate to regulate and oversee energy industries
in the economic and environmental interest of the American public.\30\
Inappropriate release of CEII could make the infrastructure more
vulnerable to attack, threatening those industries and resulting in
potentially devastating economic and environmental consequences. As
noted above, release of CEII also could make regulated entities less
forthcoming in the information they provide to the Commission,
especially where they have discretion as to what they submit.
Restricted flow of information between the Commission and the companies
could impair the Commission's programs that rely on such information.
This is of particular concern in today's world, where the Commission is
seeking additional information from licensees in order to help them
better protect the infrastructure. Finally, release of CEII could harm
the relationship between Commission staff and the regulated companies,
impairing trust, and causing the parties to deal with each other in a
more adversarial manner than necessary. For all of these reasons, much
of the CEII could be exempt from disclosure under the third prong of
Exemption 4 as it relates to compelled submissions.
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\30\ See http://www.ferc.gov/About/mission/mission--intro.htm
(2002).
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20. A second issue raised by respondents regarding the
applicability of Exemption 4 was whether the Trade Secrets Act would
prohibit the Commission from sharing Exemption 4 material on an as-
needed basis. The Trade Secrets Act states in relevant part that:
Whoever, being an officer or employee of the United States or of
any department or agency thereof, publishes, divulges, discloses or
makes known in any manner or to any extent not authorized by law any
information coming to him in the course of his employment or
official duties or by reason of any examination or investigation
made by, or return, report or record made to or filed with, such
department or agency or officer or employee thereof, which concerns
or relates to trade secrets, processes, operations, style of work,
or apparatus, or to the identify, confidential statistical data,
amount or source of any income, profits, losses or expenditures of
any person, firm, partnership, corporation, or association; * * * to
be seen or examined by any person except as provided by law; shall
be fined not more than $1,000, or imprisoned not more than one year,
or both; and shall be removed from office or employment.
18 U.S.C. 1905. See Chrysler Corp. v. Brown, 441 U.S. 281, 301(1979).
The Trade Secrets Act applies to formal agency actions as well as
actions by the agency's individual employees. Courts have found that
the coverage of the Trade Secrets Act and Exemption 4 are co-
extensive,\31\ meaning that the Trade Secrets Act generally prohibits
release of information covered by Exemption 4.\32\ However, the Trade
Secrets Act permits disclosure of trade secret information where
``authorized by law.'' \33\ Accordingly, under the Trade Secrets Act,
protected information may be released where there is statutory or
regulatory authority for the agency to
[[Page 57999]]
release it. In cases where the authorization for release is found in an
agency regulation, the inquiry is whether the regulation permitting the
release is authorized by law.\34\
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\31\ See, e.g., Bartholdi Cable Co. v. FCC, 114 F.3d 274 (DC
Cir. 1997); CNA, 830 F.2d at 1152.
\32\ CNA, 830 F.2d at 1151.
\33\ Chrysler, 441 U.S. at 301.
\34\ Id.
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21. The Commission has statutory authority to release trade secret
information. While both the Federal Power and Natural Gas Acts place
restrictions on an individual employee's release of information
gathered in the course of examining records of a company, they permit
the Commission itself to authorize such a release. The Federal Power
Act provides:
The Commission shall at all times have access to and the right
to inspect and examine all accounts, records, and memoranda of
licensees and public utilities, and it shall be the duty of such
licensees and public utilities to furnish to the Commission, within
such reasonable time as the Commission may order, any information
with respect thereto which the Commission may by order require,
including copies of maps, contracts, reports of engineers, and other
data, records, and papers, and to grant to all agents of the
Commission free access to its property and its accounts, records and
memorandum when requested so to do. No member, officer, or employee
of the Commission shall divulge any fact or information which may
come to his knowledge during the course of examination of books or
other accounts, as hereinbefore provided, except insofar as he may
be directed by the Commission or by a court.
16 U.S.C. 825(b); see 15 U.S.C. 717g(b) (Natural Gas Act) and
Commission regulation at 18 CFR 3c.2(a).
22. In addition, sections 4 and 312 of the Federal Power Act
authorize the Commission ``[t]o make public from time to time the
information secured hereunder and to provide for the publication of its
reports and investigations in such form and manner as may be best
adapted for public information and use.'' 16 U.S.C. 797(d), 825k.
Section 14 of the Natural Gas Act provides similar authorization. It
states:
The Commission may permit any person to file with it a statement
in writing, under oath or otherwise, as it shall determine, as to
any or all facts and circumstances concerning a matter which may be
the subject of investigation. The Commission, in its discretion, may
publish in the manner authorized in section 312 of the Federal Power
Act * * * information concerning any such matter.
Because these provisions give the Commission broad discretion to
release information, such release would be authorized by law under the
Federal Power and Natural Gas Acts and, therefore, permitted under the
Trade Secrets Act, creating an exception to the normal situation where
the Trade Secrets Act prohibits release of information covered by
Exemption 4. This, in turn, would permit the Commission to exempt the
information from public FOIA disclosure under Exemption 4, and still
disclose the information to selected individuals with appropriate
restrictions on use and dissemination of that information without
violating the Trade Secrets Act.
c. Exemption 7
23. Exemption 7 exempts from disclosure certain information
compiled for law enforcement purposes.\35\ For purposes of CEII, the
most relevant Exemption 7 provision is 7(F), which allows information
to be withheld in order to protect a person's life or physical safety.
In order to invoke Exemption 7, the agency must be able to demonstrate
that the document at issue involves enforcement of a statute or
regulation that the agency is authorized to enforce. The Commission has
very broad authority to enforce the provisions of the Federal Power Act
and the Natural Gas Act. For instance, under the Federal Power Act, the
Commission (1) monitors and investigates compliance with licenses,
exemptions and preliminary permits it issues, 16 U.S.C. 823b; (2)
determines just and reasonable rates, 16 U.S.C. 824e; and (3) ensures
compliance with the Act and regulations issued thereunder, 16 U.S.C.
825m, 825o-1. Similarly, with respect to natural gas, the Commission
has broad authority (1) to determine whether rates and charges are just
and reasonable, 15 U.S.C. 717c; and (2) to enforce violations of the
statute or regulations issued thereunder, 15 U.S.C. 717s. Thus, given
its broad enforcement authority, much of the information the Commission
collects qualifies as information collected for a law enforcement
purpose. For such law enforcement information to enjoy protection under
Exemption 7(F), the release of the information must reasonably be
expected to endanger a person's life or safety.
---------------------------------------------------------------------------
\35\ 5 U.S.C. 552(b)(7).
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24. Since the tragic events of September 11, 2001, there have been
repeated warnings that the energy infrastructure could be the target of
terrorist attacks. In this regard, Southern California Edison Company
cited an ABCNEWS.com report in February 2002, reporting that ``the FBI
has within the past 24 hours issued an advisory to public utilities
across the country warning that a computer from an alleged associate of
Osama bin Laden contained engineering information about dams and
reservoirs,'' and a New York Times article stating that ``computers
that control the electric power system around the nation have been
probed from the Middle East.'' \36\ These are only a sample of warnings
issued relating to the energy infrastructure. These types of reports
show that there is a strong likelihood that such facilities are being
considered as potential targets for attack.
---------------------------------------------------------------------------
\36\ Southern California Edison Co. at p. 10.
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25. Given that an attack on the energy infrastructure is a
legitimate threat, the Commission believes that release of information
that could facilitate or increase the likelihood of the success of such
an attack could be expected to endanger life and safety of people. The
failure of a dam could cause flooding that would endanger lives, as
could the explosion of a natural gas pipeline. Interruptions to gas and
electric power supplies likewise could endanger lives of those reliant
on power, especially in times of extreme hot or cold weather. For these
reasons, the Commission believes that information identified as CEII
may qualify for protection under Exemption 7(F).
2. Substantive Statutes
26. The NOI asked whether there were statutes other than FOIA that
require that certain information be made available to the public by the
Commission. Most of the respondents' objections to protecting CEII were
related to FOIA, or to the general public's right to the
information.\37\ Few, if any, cited substantive statutes that
purpportedly prohibit restrictions on release of CEII.\38\ While
certain statutory provisions appear to require that information be made
available to the public, no respondent could point to a substantive
statutory provision that would constrain the Commission's exercising
its discretion in determining exactly how to make the information
available to the public. For instance, as
[[Page 58000]]
noted by EEI,\39\ while Federal Power Act sec. 15 requires licensees to
make certain data ``reasonably available to the public for inspection''
at their offices, 16 U.S.C. 808(b)(2), the Commission has the
discretion to define exactly what information is covered and how it is
to be made available. Similarly, while Federal Power Act sec. 213, 16
U.S.C. 824, states that the Commission ``shall promulgate a rule
requiring that information be submitted annually to the Commission by
transmitting utilities which is adequate to inform potential
transmission customers, State regulatory authorities, and the public of
potentially available transmission capacity and known constraints,''
that section imposes no requirement on the Commission to disseminate
the information in any particular manner.\40\ Accordingly, the
Commission believes that there is no statutory impediment to its
protecting CEII.\41\
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\37\ See, e.g., American Library Association at pp. 1-2, OMB
Watch at p. 2, Platts at p. 3, Public Citizen at p. 3, and Reporters
Committee for Freedom of the Press at pp. 2-3.
\38\ See, e.g., Platts at p. 5 (``[T]he Natural Gas Act provides
for publicly available filings for rates, for new construction and
for applications for certificates of public convenience and
necessity. 15 U.S.C. 717c, f, and i.''). None of these provisions,
however, prohibits the Commission's withholding of CEII. The
Commission is not withholding as CEII any information required to be
publicly available under 15 U.S.C. 717c. The Commission has broad
discretion under 17 U.S.C. 717f(d) to determine whether and how
information related to certificate applications will be
disseminated. Similarly, under 17 U.S.C. 717i(a), ``[t]he Commission
may prescribe the manner and form in which such reports shall be
made * * *''
\39\ EEI at pp. 15-16.
\40\ The Commission recently issued an order in RM93-10-000
temporarily suspending the Commission's practice of making publicly
available CEII in Form No. 715, Annual Transmission Planning and
Evaluation Report, which was promulgated to satisfy the Commission's
requirements under Federal Power Act sec. 213(b). See Order on
Interim Treatment of Information Collected in Form No. 715, 100 FERC
] 61,141 (2002). The Commission noted there that while this was
inconsistent with its past practice, it concluded that the step was
allowable under its regulations at 18 CFR 141.300, which require
transmitting utilities to file the Form No. 715 annually with the
Commission, and to make their Form No. 715s available to the public.
Neither the regulation nor the instructions associated with the form
require that the entire form be made publicly available directly
from the Commission.
\41\ Several respondents suggested that the Commission review
the CEII information it collects to determine whether it is
necessary to collect it. The Commission is committed to examining
information collections to see if there are situations where
collection of CEII can be reduced.
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C. Definition of CEII
1. Consideration of Facilities' Size
27. Many of the respondents who approved protecting CEII proffered
definitions of the term. For instance, the Adirondack Mountain Club
recommended a size threshold for protection of projects, suggesting
that relevant information be released for hydropower projects under 5
MW.\42\ Similarly, Atlanta Gas Light Company proposed an approach that
took into consideration the size and operating pressure of the facility
as well as the impact that the loss of service would have in
determining whether to protect information regarding a particular
facility.\43\ A problem with any approach that distinguishes among
facilities and protects only information regarding large or
particularly critical facilities is that it highlights for would-be
terrorists those facilities that would be the best targets. That is
obviously not an option. Therefore, rather than defining CEII in terms
of a facility's size or vulnerability, the Commission proposes in Sec.
388.113(c)(1) to define CEII, in part, in FOIA terms, thereby
clarifying that the Commission is withholding only information that is
entitled to protection under the FOIA.
---------------------------------------------------------------------------
\42\ See Adirondack Mountain Club at p. 1.
\43\ Atlanta Gas Light Company at pp. 3-4.
---------------------------------------------------------------------------
2. Existing Facilities Versus Proposed Facilities
28. The NOI requested responses on whether the Commission should
continue to protect only information about licensed, exempted,
certificated, and built facilities, or extend CEII protection to
proposed facilities. The majority of respondents who favored protecting
CEII argued that such protection should be extended to proposed
facilities.\44\ Atlanta Gas Light Company stated, for example, that
``without restrictions on access to information regarding proposed
facilities, existing facilities would also be compromised from the
interconnection point with the new facilities.'' \45\ Others noted that
once the information is in the public domain, it is not possible to
retrieve it when the license or certificate is issued.\46\
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\44\ See, e.g., Atlanta Gas Light Co. at p. 6, EEI at p. 5,
Exelon Corp. at pp. 1-3, Maine Public Utilities Commission at p. 3,
and Southern Co. Services, Inc. at p. 11.
\45\ Atlanta Gas Light Company at p. 6.
\46\ See, e.g., Southern Co. Services, Inc. at p. 11.
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29.Based on review of the comments and its experience with
implementation of PL02-1, proposed Sec. 388.113(c)(1) includes
information regarding proposed facilities in the definition of CEII.
The major concern initially about withholding information about
proposed projects was that people might not be able to participate
effectively in the National Environmental Policy Act (NEPA) process.
The Commission, of course, has no intention of letting that happen.
Accordingly, the Commission proposes to alter its current practice and
no longer protect location information. In addition, the Commission
proposes to establish means for affected landowners and other parties
to obtain necessary information for them to participate effectively in
the Commission proceedings. As discussed below in III.C.3 and III.D.,
these proposals should help avoid any negative impact on Commission
proceedings.
3. Information on Location of Facilities
30. The NOI asked to what extent the Commission should protect
location information. Some respondents maintained that location
information and other information that is available from other sources
or from visual observation should not be considered to be CEII.\47\
Reliant Energy HL & P and others, however, voiced concern over
releasing such information.\48\ The Commission has concluded that there
is little to be gained by protecting information that can be gleaned
from a visual inspection of the facility, or that is otherwise easily
attainable from other sources, such as the United States Geological
Survey or commercial mapping firms. Even where location information may
not be readily available elsewhere, the public often wants to know
specifically where these facilities are located, especially to the
extent that they may pose a potential threat to health, safety,
property, or the environment. In addition, it is difficult, if not
impossible, to conduct a thorough NEPA review without providing
specific information about the location of facilities. For the
foregoing reasons, proposed Sec. 388.113(c)(1)(iv) excludes from the
definition of CEII information that simply gives the location of
critical infrastructure.
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\47\ See, e.g., American Superconductor Corporation at pp. 1-3,
Central Maine Power at p. 3, State Commissions (Public Utilities
Commission of Ohio, Oklahoma Corporation Commission, and Michigan
Public Service Commission) at p. 11, PJM Interconnection, L.L.C. at
p. 7, Southern California Edison Company at p. 5, and Utilities
Commission, City of New Smyrna Beach, Florida at p. 2.
\48\ Reliant argued that location information should be
protected and that ``it should be irrelevant whether information is
contained on a commercial map.'' Reliant at p. 4. See also EEI at p.
6.
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4. Elements of CEII Definition
31. In light of these considerations, proposed Sec. 388.113(c)(1)
defines CEII as information about proposed or existing critical
infrastructure that (i) relates to the production, generation,
transportation, transmission, or distribution of energy, (ii) could be
useful to persons in planning an attack on critical infrastructure,
(iii) is exempt from mandatory disclosure under the Freedom of
Information Act, 5 U.S.C. 552, and (iv) does not simply give the
location of the critical infrastructure. Proposed Sec. 388.113(c)(2),
in turn, defines ``critical infrastructure'' as ``systems and assets,
whether physical or virtual, that are so vital to the United States
that the incapacity or destruction of such systems or assets would have
a debilitating impact on the security, national economic security,
national public health or safety, or any
[[Page 58001]]
combination of those matters.'' The Commission has chosen this meaning
of the term ``critical infrastructure'' because it appropriately
reflects the same definition contained in sec. 1016(d) (Critical
Infrastructure Protection Act of 2001) of the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act (USA PATRIOT Act) Pub. L. No. 107-56. As
especially relevant, this Act considers the energy infrastructure to be
vital to the United States by explicitly finding that ``[p]rivate
business, government, and the national security apparatus increasingly
depend on an interdependent network of critical physical and
information infrastructures, including telecommunications, energy,
financial services, water and transportation sectors.'' Pub. L. 107-56,
sec. 1016(b)(2) (emphasis added).\49\
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\49\ Examples of the types of information that may qualify for
CEII protection include pipeline flow diagrams, inspection reports,
detailed layouts of facility structures, emergency action plans
(EAPs) and EAP test reports, and portions of FERC Form No. 715,
Annual Transmission Plan and Evaluation Report.
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D. Requester's Status and Need for the Information
32. An overwhelming majority of respondents claimed that Federal
requesters, owners/operators and their agents, interveners, and state
agencies should have access to CEII.\50\ Many also approved of access
by affected landowners. In addition, most respondents suggested that
the Commission condition access on a requester's willingness to sign a
non-disclosure agreement.\51\ Conversely, many respondents objected to
the media's receiving CEII because they would undoubtedly refuse to
limit disclosure of the information. The same concern arose to a lesser
extent with respect to third-party requesters.\52\
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\50\ See, e.g., Blue Ridge Power Agency at p. 3, Atlanta Gas
Light at pp. 6-8, and Adirondack Mountain Club at p. 10.
\51\ See, e.g., American Transmission Co. at p. 5, Atlanta Gas
Light Co. at p. 12, Mid-Continent Area Power Pool at p. 2, Member
Systems at p. 5, MidAmerican Energy Co. at p. 2, Reliant HL & P at
pp. 9-10, Southern California Edison Co. at p. 8, Southern Co.
Services, Inc. at p. 2, Williston Basin Interstate Pipeline Co. at
p. 29, Duquesne Light Co. at p. 2, EEI at p. 8, and Public Utility
District No. 1 of Chelan County, Washington at p. 2.
\52\ See, e.g., Atlanta Gas Light Co. at p. 13.
---------------------------------------------------------------------------
33. The respondents who disagreed with restricting access to CEII
generally argued that everyone should be given access to this
information, and that access should not be restricted to those with a
specific need or those who are willing to sign a nondisclosure
agreement.\53\ OMB Watch argued that the public does not have to
demonstrate a need to know in order to get information under the
FOIA.\54\ Several parties contended that the best ways to protect the
infrastructure are to facilitate infrastructure expansion and to make
the markets function effectively. They claimed that free access to
CEII-type information is key to both of these things, and that
potential investors need to know where there is a need for new
capacity. Potential buyers and sellers of power, they contended, also
need to know what is available in the market.\55\
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\53\ See, e.g., Platts at pp. 5, 17-19, and Reporters Committee
for Freedom of the Press at pp. 7-8.
\54\ See OMB Watch at pp. 2-3.
\55\ See, e.g., American Public Power Association at p. 6,
Platts at p. 33, and Utilities Commission, City of New Smyrna Beach,
Florida at pp. 2-6.
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34. The Commission may take a requester's status into consideration
if the request is not made pursuant to the FOIA and its FOIA
regulations, because, as OMB Watch pointed out, only FOIA precludes a
requester's status from being taken into account. See OMB Watch at p.
2. This is no different from the Commission's consideration of a
person's status in a docketed proceeding, where it does not, for
example, entertain rehearing requests from someone who has not timely
intervened in the case. See Panhandle Eastern Pipe Line Co., 78 FERC ]
61,180 (1997). The important point here is that anyone, regardless of
status, may always request information under the Commission's FOIA
regulations. A person's status would be considered only to ascertain
eligibility to receive information through the optional procedures for
accessing CEII as laid out in proposed Sec. 388.113(d). Pivotal to
that determination would be the person's need for the information.
35. Specifically, proposed Sec. 388.113(d)(1) provides that an
owner/operator of an energy facility may always have access to
information concerning that facility, and may receive the information
directly from staff without using the FOIA or CEII procedures. This
exemption reflects the obvious need that an owner/operator has for
information to operate his facility and to comply with the law and the
terms and conditions of the authorizing instrument. This exemption also
reflects the Commission's view that owners/operators have as much
interest in protecting their assets, employees, and other property and
people as the Commission does. Next, proposed Sec. 388.113(d)(2)
provides than an agent of an owner/operator needs to obtain the
information from the owner/operator, who would either have the
information because it created the document or would be able to obtain
the information from the Commission pursuant to proposed Sec.
388.113(d)(1).
36. For all other non-FOIA requests, proposed Sec. 388.113(d)(3)
sets forth a process where requesters would provide to a CEII
Coordinator detailed information about themselves and their need for
the information, which the CEII Coordinator would use in determining
whether to release the information. Such need would be implicated, for
example, if the requester is an intervener in a proceeding or a
landowner affected by a proposed facility. Obviously, such individuals
must have access to information to participate meaningfully in the
proceeding.
37. To enable the CEII Coordinator to make these determinations on
a timely basis, and to ensure that requesters' rights are adequately
protected, the Commission proposes, in Sec. 375.313, to delegate the
authority to make need determinations to the staff member designated as
the CEII Coordinator. Accordingly, a non-FOIA requester would not have
to file a motion with the Commission as it would otherwise be required
to do outside the FOIA process. As action on motions is discretionary,
the requester would not have any assurance, given the Commission's
extraordinary caseload, as to when it would receive an answer. In
contrast, under proposed Sec. 388.113(d)(3)(iii), the requester would
receive a response in accord with the timing associated with FOIA
requests, viz., 20-30 business days depending on whether an extension
is warranted. See 18 CFR 388.108(c). Furthermore, as action taken by
the CEII Coordinator would be subject to rehearing by the Commission
itself, as is true for all delegated matters, a requester would always
be able to plead its case accordingly.
38. Finally, the Commission believes that market participants will
be able to get access to the information they need without the
Commission making the information available to the general public. As
discussed above, they can seek access under Sec. 388.113. In addition,
as several respondents noted, much of the same sort of information is
still available, albeit perhaps in slightly different form. For
instance, Southern Company Services, Inc. pointed out that ``for all
practical purposes, the information contained in some of these filings
[that have been removed from public access under PL02-1-000] is now
being provided on OASIS, on a more timely basis and in a more useful
format, thereby obviating the need for
[[Page 58002]]
certain forms.'' \56\ Even respondents who did not agree with the
Commission's current approach recognized that much of the same type of
information is available elsewhere. The significance here for
protecting CEII is that the FERC would not be making the information
available to everyone on the Internet.
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\56\ Southern Company Services, Inc. at p. 3.
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E. Verification and Access Issues
39. Most respondents who approved of limited access to CEII also
approved of the use of Passwords, IDs, PINs, etc.\57\ Others suggested
use of outside experts (e.g., the Federal Bureau of Investigation and
the Office of Homeland Security) to verify identity of requesters. At
this time, the Commission does not believe that the use of outside
experts is necessary. The majority of market participants are well
known to the Commission, and therefore relatively easy to verify.
---------------------------------------------------------------------------
\57\ See, e.g., Atlanta Gas Light Co. at p. 10, EEI at p. 11,
Electric Power Supply Assoc. at p. 4, Member Systems at p. 5,
Southern California Edison Co. at p. 7, Reliant Energy HL & P at p.
7, and Williston Basin Interstate Pipeline Co. at p. 25.
---------------------------------------------------------------------------
40. The NOI also inquired whether the Commission should verify an
organization and leave it up to the organization to verify its own
users, or whether the Commission should verify each user separately.
While it would be easier to administer the program if the Commission
does not have to keep track of all individual users within a particular
organization, for the time being the Commission proposes to control all
access to the information. This should help ensure a consistent
approach, and will enable the Commission to account for disclosures
made.
41. The NOI also raised the issue of whether elimination of all
Internet access to CEII would be sufficient to protect CEII.
Elimination of all Internet access was not widely endorsed as the sole
method of protecting CEII. Similarly, few respondents favored the idea
of requiring various levels of verification depending on how a
requester sought to access the information (via Internet, mail, in
person, etc.).\58\ For those reasons, the Commission is not proposing
such approaches.
---------------------------------------------------------------------------
\58\ See, e.g., Atlanta Gas Light Co. at p. 10, Reliant Energy
HL & P at p. 8, and Southern California Edison Co. at p. 8.
---------------------------------------------------------------------------
42. Another issue is whether the Commission should give certain
``frequent customers'' generic approval to access CEII, or whether the
Commission should require new authorization whenever an entity or
person wants CEII on a new matter. Many respondents thought access
should be based on a need to know, and that need to know should be
established for each docket involving CEII.\59\ Others contended that
frequent participants should be granted a generic clearance to obtain
CEII.\60\ Although some of the administrative burden on requesters and
staff would be reduced if some entities could be given generic access,
for now, the Commission proposes to require requesters to submit
separate requests for CEII relating to different proceedings. In this
way, a requester's need for information relating to a particular
proceeding may be evaluated, and the number of people getting access to
CEII in any given matter may be limited, lessening the likelihood that
the information will reach someone with bad intentions.
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\59\ See, e.g., Public Utility District No. 1 of Chelan County,
Washington at p. 2, American Transmission Co. at p. 5, Atlanta Gas
Light Co. at pp. 6-7, EEI at p. 8, PJM Interconnection, L.L.C. at p.
7, and Southern California Edison Co. at p. 7.
\60\ See, e.g., Blue Ridge Power Agency at p. 7.
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F. Use of Non-Disclosure Agreements
43. Related to a requester's need to know is the issue of whether
requesters should have to sign non-disclosure agreements (NDAs) as a
condition of accessing CEII. Most respondents commented that the
majority of recipients should sign NDAs, although several believed that
owner/operators (and sometimes their agents/representatives) should not
have to sign NDAs to receive information about their own facilities.
Given that owners/operators have incentives to protect CEII, the
Commission does not propose to require them to sign NDAs. The
Commission also does not intend to require representatives of owner/
operators to sign NDAs; however, as provided in proposed Sec.
388.113(d)(2), the representatives must obtain CEII directly from or
through the owners/operators rather than from the Commission.
44. The Commission also does not propose to require other Federal
agencies to sign NDAs before receiving CEII. The reason is that 44
U.S.C. 3510(b) binds employees of other agencies to protect information
that is protected by the originating agency, so an NDA would not be
required where the Commission shares CEII with another Federal agency.
A more difficult issue pertains to state agency requesters. Respondents
rightly are concerned about state agencies' ability to agree to NDAs
given state FOIA laws that may compel disclosure of information.\61\ In
other words, while a state requester may have the best intentions to
protect CEII, state law may mandate release of the information obtained
from the Commission. As a general matter, however, Federal law preempts
state law. Thus, the Federal FOIA law may trump state FOIA law where
the information at issue is Federal information. The Commission invites
comments on whether it would be appropriate to permit use of a modified
NDA for state agency representatives wherein they would agree to
protect the information to the extent permitted by Federal law. Another
option might be for the Commission to reserve control of CEII documents
``on loan'' to state agencies, potentially taking the documents outside
of the state FOIA law.\62\
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\61\ See, e.g., Atlanta Gas Light Co. at p. 8 and Williston
Basin Interstate Pipeline Co. at p. 23.
\62\ See United States v. Napper, 887 F.2d at 1530 (11th Cir.
1989) (F.B.I. could retrieve requested documents loaned to local
government agency, taking documents outside the reach of the non-
Federal FOIA statute.)
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45. Most respondents thought the Commission should negotiate the
NDAs with requesters, while a few thought that a CEII submitter should
negotiate an agreement with the requester.\63\ There may be too much
potential for charges of discriminatory treatment if the Commission
leaves it to the discretion of the owner/operator whether to provide
information, and under what conditions to provide it. For that reason,
and for the sake of consistency, the Commission proposes in Sec.
388.113(d)(3)(ii) to handle negotiation of all NDAs. Accordingly, that
proposed section directs the CEII Coordinator to evaluate a requester's
need for the information and propose terms for the NDA, where
appropriate. That said, there is nothing to prevent someone from
attempting to obtain CEII directly from the submitter, but the
submitter would be under no obligation to agree to provide the
information directly to the requester unless there is an independent
obligation to do so.
---------------------------------------------------------------------------
\63\ See, e.g., Duquesne Light Co. at p. 3, Exelon Corp. at p.
4, Southern California Edison Co. at p. 8, and Reliant Energy HL & P
at p. 9.
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G. Submission of CEII to the Commission
46. The Commission's existing regulations at 18 CFR 388.112 provide
a process for filers to submit documents with a request for privileged
treatment. The Commission proposes to amend Sec. 388.112 to clarify
that claims for privileged treatment should indicate whenever a filing
contains CEII.\64\ Because the Commission proposes to
[[Page 58003]]
adopt the approach in Sec. 388.112 for filing CEII, it does not
specify how the filer should segregate or redact non-public information
from the rest of the filing. As with non-CEII, the filer must in the
first instance decide whether to have a separate non-public appendix,
or to just redact non-public information from the filing. While filers
must take their obligation to protect CEII seriously, the Commission
cautions that it will not tolerate filers invoking CEII inappropriately
by sweeping non-CEII (or other legitimate confidential information)
under the CEII heading. Such abuse of the CEII process could dilute its
effectiveness by numbing the staff and parties to the importance of
protecting the information. If the Commission finds that filers are not
being careful in their submittals, especially if there is any evidence
of a pattern of inappropriate claims of privileged treatment, the
Commission will take steps to discipline those filers.
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\64\ Because necessary revisions to Sec. 388.112 are woven
throughout, the section is reproduced in whole.
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H. Challenges to CEII Status
47. Most respondents maintained that 18 CFR 388.112 provides a
satisfactory vehicle for challenges to claims for CEII status.\65\ The
Commission agrees, and in Sec. 388.112(a) clarifies that people filing
documents containing CEII should follow the procedures in Sec.
388.112. Respondents also indicated that the Commission should broaden
Sec. 388.112 to clarify that it covers exemptions other than just
Exemption 4.\66\ For example, Sec. 388.112(e) currently is limited to
situations where a FOIA requester brings suit to gain access to
confidential commercial information, the type normally exempt under
Exemption 4. The Commission agrees that the rule should be broadened to
cover all requests for privileged information, and proposes to revise
the regulation at Sec. 388.112(a) and (e) to make clear that it
applies to any information exempt from mandatory release under FOIA.
Finally, respondents also urged that all procedural steps in Sec.
388.112 should be followed for challenges to CEII status. The
Commission agrees in part. The procedures should apply where staff on
its own initiative questions the applicability of CEII status, or where
there is a non-FOIA request through the CEII Coordinator. For this
reason, the Commission is revising Sec. 388.112(d) and (e) to apply to
both FOIA requests and other CEII requests. However, the provision in
388.112(f) regarding notification of suit in Federal courts is not
being revised to apply to CEII requests. Because any suit regarding
CEII in Federal court would be brought under the Federal Power Act, the
Natural Gas Act, or another enabling statute, jurisdiction would be in
the United States Courts of Appeals.\67\ Accordingly, under Rule 15(c)
of the Federal Rules of Appellate Procedure, a petitioner seeking
review of a Commission order must serve a copy of the petition on all
parties in the Commission proceeding. Therefore, no modification to
Sec. 388.112(f) is necessary.
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\65\ See, e.g., Exelon Corp. at p. 6, and Southern California
Edison Co. at pp. 11-12.
\66\ See, e.g., Southern Co. Services, Inc. at pp. 24-25.
\67\ Review of the CEII Coordinator's decision to deny access to
CEII would not be handled under the FOIA procedures unless the
request for access was made pursuant to the FOIA. A CEII requester
who uses the process in Sec. 388.113 instead of the FOIA may seek
rehearing of the CEII Coordinator's decision under 18 CFR 385.713.
After exhausting administrative remedies, the requester may seek
review of the Commission's decision in the United States Court of
Appeals. Under the Department of Energy Organization Act, the
Commission's Solicitor represents the Commission in such actions.
See 42 U.S.C. 7171(i) (``[A]ttorneys designated by the Chairman of
the Commission may appear for, and represent the Commission in, any
civil action brought in connection with any function carried out by
the Commission pursuant to this chapter or as otherwise authorized
by law.'')
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IV. Information Collection Statement
48. Office of Management and Budget (OMB) regulations require OMB
to approve certain information collection requirements imposed by
agency rule.\68\ The following collection of information contained in
this proposed rule has been submitted to the Office of Management and
Budget (OMB) for review under Section 3707(d) of the Paperwork
Reduction Act of 1995. FERC identifies the information provided for
under Part 388.113 as FERC-603.
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\68\ 5 CFR 1320.12.
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49. Comments are solicited on the need for this information,
whether the information will have practical utility, the accuracy of
the provided burden estimates, ways to enhance the quality, utility,
and clarity of the information to be collected, and any suggested
methods for minimizing respondents' burden, including the use of
automated information techniques. The following burden estimates
include the cost of preparing and submitting a CEII data request in
order to comply with the Commission's proposed regulations.
Public Reporting Burden: Estimated Annual Burden:
----------------------------------------------------------------------------------------------------------------
Number of Number of Hours per Total annual
Data collection respondents responses response hours
----------------------------------------------------------------------------------------------------------------
FERC-603.................................... 200 200 .25 50
----------------------------------------------------------------------------------------------------------------
Total Annual Hours for Collection (reporting + recordkeeping, if
appropriate): 50 hours.
Information Collection Costs: The Commission seeks comments on the
cost to comply with these requirements. It has projected the average
annualized cost of all respondents to be: Annualized Capital Startup
Costs: The Commission estimates that to respond to this information
collection will be a one-time cost of $12.50 per respondent. (50 hours
@ $50 hourly rate / 200).
Title: FERC-603, CEII Data Request.
Action: Proposed Data Collection.
OMB Control No.: To be determined.
The applicant shall not be penalized for failure to respond to this
collection of information unless the collection of information displays
a valid OMB control number or the Commission has provided justification
as to why the control number should not be displayed.
Respondents: Businesses or other for profit; Individuals or
households; Not for profit institutions, and/or State, Local or Tribal
Governments.
Frequency of Responses: On occasion.
Necessity of the Information: The proposed rule would revise the
Commission's regulations to provide an alternative process to the
Freedom of Information Act for requesting CEII. The Commission is
proposing a process where requesters will provide basic information
about themselves and explain their need for the information, which the
Commission will factor into a determination as to whether to release
the information. The purpose of the process is to provide information
to individuals who need it to participate in the Commission's
proceedings, but who might not otherwise have access to the information
under FOIA.
50. Interested persons may obtain information on the reporting
requirements by contacting the following: Federal Energy Regulatory
[[Page 58004]]
Commission, 888 First Street, NE., Washington, DC 20426 [Attention:
Michael Miller, Office of the Chief Information Officer, Phone (202)
502-8415, fax: (202) 208-2425, E-mail: [email protected]] For
submitting comments concerning the collection of information(s) and the
associated burden estimate(s), please send your comments to the contact
listed above and to the Office of Management and Budget, Office of
Information and Regulatory Affairs, Washington, DC 20503, [Attention:
Desk Officer for the Federal Energy Regulatory Commission, phone: (202)
395-7856, fax: (202)395-7285].
V. Environmental Analysis
51. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant adverse effect on the human environment.\69\ The
Commission has categorically excluded certain actions from this
requirement as not having a significant effect on the human
environment. Included in the exclusions are rules that are clarifying,
corrective, or procedural or that do not substantively change the
effect of the regulations being amended.\70\ This proposed rule, if
finalized, is procedural in nature and therefore falls under this
exception; consequently, no environmental consideration would be
necessary.
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\69\ Order No. 486, Regulations Implementing the National
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. &
Regs. Preambles 1986-1990 ] 30,783 (1987).
\70\ 18 CFR 380.4(a)(2)(ii).
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VI. Regulatory Flexibility Act Certification
52. The Regulatory Flexibility Act of 1980 (RFA) \71\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
The Commission is not required to make such analyses if a rule would
not have such an effect. The Commission certifies that this proposed
rule, if finalized, would not have such an impact on small entities.
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\71\ 5 U.S.C. 601-612.
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VII. Comment Procedures
53. The Commission invites interested persons to submit written
comments on the matters and issues proposed in this notice to be
adopted, including any related matters or alternative proposals that
commenters may wish to discuss. Comments are due October 15, 2002.
Comments must refer to Docket Nos. PL02-1 and RM02-4, and may be filed
either in electronic or paper format. Those filing electronically do
not need to make a paper filing.
54. Documents filed electronically via the Internet may be prepared
in a variety of formats, including WordPerfect, MS Word, Portable
Document Format, Rich Text Format, or ASCII format, as listed on the
Commission's Web site at http://ferc.gov, under the e-Filing link. The
e-Filing link provides instructions for how to Login and complete an
electronic filing. First time users will have to establish a user name
and password. The Commission will send an automatic acknowledgment to
the sender's E-Mail address upon receipt of comments. User assistance
for electronic filing is available at 202-502-8258 or by e-Mail to
[email protected] Comments should not be submitted to the E-Mail
address.
55. For paper filings, the original and 14 copies of such comments
should be submitted to the Office of the Secretary, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
56. All comments will be placed in the Commission's public files
and will be available for inspection in the Commission's Public
Reference Room at 888 First Street, NE., Washington, DC 20426, during
regular business hours. Additionally, all comments may be viewed,
printed, or downloaded remotely via the Internet through FERC's
Homepage using the FERRIS link.
VIII. Document Availability
57. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's
Public Reference Room during normal business hours (8:30 a.m. to 5:00
p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC
20426.
58. From FERC's Home Page on the Internet, this information is
available in the Federal Energy Regulatory Records Information System
(FERRIS). The full text of this document is available on FERRIS in PDF
and WordPerfect format for viewing, printing, and/or downloading. To
access this document in FERRIS, type the docket number excluding the
last three digits of this document in the docket number field.
59. User assistance is available for FERRIS and the FERC's website
during normal business hours from our Help line at (202) 502-8222 or
the Public Reference Room at (202) 502-8371 (Press 0), TTY (202) 502-
8659. E-Mail the Public Reference Room at
[email protected]
List of Subjects
18 CFR Part 375
Authority delegations (Government agencies), Seals and insignia,
Sunshine Act.
18 CFR Part 388
Confidential business information, Freedom of information.
By direction of the Commission.
Magalie R. Salas,
Secretary.
In consideration of the foregoing, the Commission proposes to amend
parts 375 and 388, Chapter I, Title 18, Code of Federal Regulations as
follows:
PART 375--THE COMMISSION
1. The authority citation for part 375 continues to read as
follows:
Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16
U.S.C. 791-825r, 2601-2645, 42 U.S.C. 7101-7352.
2. Add Sec. 375.313 to subpart C to read as follows:
Sec. 375.313 Delegations to the Critical Energy Infrastructure
Information Coordinator.
The Commission authorizes the Coordinator or the Coordinator's
designee to:
(a) Receive and review all requests for critical energy
infrastructure information as defined in Sec. 388.113(c)(1).
(b) Make determinations whether a particular requester's need for
and ability and willingness to protect critical energy infrastructure
information warrants limited disclosure of the information to the
requester.
(c) Establish reasonable conditions on the release of critical
energy infrastructure information.
(d) Release critical energy infrastructure information to
requesters who satisfy the requirements in paragraph (b) of this
section and agree in writing to abide by any conditions set forth by
the Coordinator under paragraph (c) of this section.
PART 388--INFORMATION AND REQUESTS
1. The authority citation for part 388 continues to read as
follows:
Authority: 5 U.S.C. 301-305, 551, 552 (as amended), 553-557; 42
U.S.C. 7101-7352.
2. Section 388.112 is revised to read as follows:
[[Page 58005]]
Sec. 388.112 Requests for privileged treatment of documents submitted
to the Commission.
(a) Scope. Any person submitting a document to the Commission may
request privileged treatment by claiming that some or all of the
information contained in a particular document is exempt from the
mandatory public disclosure requirements of the Freedom of Information
Act, 5 U.S.C. 552, and should be withheld from public disclosure. Any
person submitting documents containing critical energy infrastructure
information as defined in Sec. 388.113 should follow the procedures
specified in this section.
(b) Procedures. A person claiming that information is privileged
under (a) of this section must file:
(1) For documents submitted in hard copy,
(i) A written statement requesting privileged treatment for some or
all of the information in a documents, and the justification for
nondisclosure of the information;
(ii) The original document, boldly indicating on the front page
either ``Contains Privileged Information--Do Not Release'' or
``Contains Privileged Critical Energy Infrastructure Information--Do
Not Release'' and identifying within the document the information for
which the privileged treatment is sought;
(iii) Fourteen copies of the document without the information for
which privileged treatment is sought, and with a statement indicating
that information has been removed for privileged treatment;
(iv) The name, title, address telephone number, e-mail address, and
facsimile number of the person or persons to be contacted regarding the
request for privileged treatment of documents submitted to the
Commission.
(2) For documents submitted on electronic media,
(i) A written statement requesting privileged treatment for some or
all of the information on the electronic media, and the justification
for non-disclosure of the information;
(ii) One copy of a complete filing on the electronic media marked
either ``Contains Privileged Information--Do Not Release'' or
``Contains Privileged Critical Energy Infrastructure Information--Do
Not Release'' and identifying on the electronic media only the
information for which the privileged treatment is sought with one paper
copy also marked either ``Contains Privileged Information--Do Not
Release'' or ``Contains Privileged Critical Energy Infrastructure
Information--Do Not Release'';
(iii) One copy of the electronic media without the information for
which privileged treatment is sought and with a statement that
information has been removed for privileged treatment with fourteen
paper copies without the information for which privileged treatment is
sought; and
(iv) The name, title, address, telephone number, e-mail address,
and facsimile number of the person or persons to be contacted regarding
the request for privileged treatment of documents submitted to the
Commission.
(c) Effect of privilege claim--(1) For documents filed with the
Commission. (i) The Secretary of the Commission will place documents
for which privileged treatment is sought in accordance with paragraph
(b)(1)(ii) of this section in a nonpublic file, while the request for
privileged treatment is pending. By placing documents in a nonpublic
file, the Commission is not making a determination on any claim for
privilege. The Commission retains the right to make determinations with
regard to any claim of privilege, and the discretion to release
information as necessary to carry out its jurisdictional
responsibilities.
(ii) The Secretary of the Commission will place the request for
privileged treatment described in paragraph (b) of this section and a
copy of the original document with the privileged information removed
in a public file while the request for privileged treatment is pending.
(2) For documents submitted to Commission staff. The notification
procedures of paragraphs (d) (e) and (f) of this section will be
followed by staff before making a document public.
(d) Notification of request and opportunity to comment. When a FOIA
or CEII requester seeks a document for which privilege is claimed, or
when the Commission itself is considering release of the information,
the Commission official who will decide whether to make the document
public will notify the person who submitted the document and give the
person an opportunity (at least five days) in which to comment in
writing on the request. A copy of this notice will be sent to the
requester.
(e) Notification before release. Notice of a decision by the
Commission, the Chairman of the Commission, the Director, Office of
External Affairs, the General Counsel or General Counsel's designee, a
presiding officer in a proceeding under part 385 of this chapter, or
any other appropriate official to deny a claim of privilege, in whole
or in part, will be given to any person claiming that information is
privileged no less than five days before public disclosure. The notice
will briefly explain why the person's objections to disclosure are not
sustained by the Commission. A copy of this notice will be sent to the
FOIA or CEII requester.
(f) Notification of suit in Federal courts. When a FOIA requester
brings suit to compel disclosure of information for which a person has
claimed privileged treatment, the Commission will notify the person who
submitted the documents of the suit.
3. Add Sec. 388.113 to read as follows:
Sec. 388.113 Accessing Critical Energy Infrastructure Information
(a) Scope. This section governs access to critical energy
infrastructure information (CEII). The rules governing submission of
CEII are contained in 18 CFR 388.112(b). The Commission reserves the
right to restrict access to previously filed documents as well as
Commission-generated documents containing CEII.
(b) Purpose. The procedures in this section are available at the
requester's option as an alternative to the FOIA procedures in Sec.
388.108 where the information requested is exempted from disclosure
under the FOIA because it contains CEII.
(c) Definitions. For purposes of this section:
(1) Critical energy infrastructure information means information
about proposed or existing critical infrastructure that:
(i) Relates to the production, generation, transportation,
transmission, or distribution of energy;
(ii) Could be useful to a person in planning an attack on critical
infrastructure;
(iii) Is exempt from mandatory disclosure under the Freedom of
Information Act, 5 U.S.C. 552; and
(iv) Does not simply give the location of the critical
infrastructure.
(2) Critical infrastructure means systems and assets, whether
physical or virtual, that are so vital to the United States that the
incapacity or destruction of such systems or assets would have a
debilitating impact on the security, national economic security,
national public health or safety, or any combination of those matters.
(d) Optional procedures for requesting critical energy
infrastructure information.
(1) An owner/operator of a facility may obtain CEII relating to its
own facility directly from Commission staff without going through the
procedures outlined below.
(2) An agent or representative of an owner/operator must obtain
information from the owner/operator.
[[Page 58006]]
(3) If any other requester has a particular need for information
designated as CEII, the requester may request the information using the
following procedures:
(i) File a written request with the Commission's CEII Coordinator.
The request shall contain the following: requester's name, title,
address and telephone number; the name, address and telephone number of
the person or entity on whose behalf the information is requested; a
detailed statement explaining the particular need for and intended use
of the information; and a statement as to the requester's willingness
to adhere to limitations on the use and disclosure of the information
requested.
(ii) Once the request is received, the CEII Coordinator will
determine whether to release the CEII to the requester. The CEII
Coordinator will consider the requester's need for the information. If
the requester is determined to be eligible to receive the information
requested, the CEII Coordinator will determine what conditions, if any,
to place on release of the information. Where appropriate, the CEII
Coordinator will forward a non-disclosure agreement to the requester
for execution. Once the requester signs any required non-disclosure
agreement, the CEII Coordinator will make the critical energy
infrastructure information available to the requester. The CEII
Coordinator's decisions regarding release of CEII are final decisions
for purposes of Sec. 385.713.
(iii) The CEII Coordinator will attempt to respond to the requester
under this section according to the timing required for responses under
the Freedom of Information Act in Sec. 388.108(c), and will provide
notice to the submitter in accordance with Sec. 388.112(d) and (e).
Appendix--List of Respondents
Note: This appendix will not appear in the Code of Federal
Regulations.
1. Adirondack Mountain Club
2. American Library Association
3. American Public Power Association (APPA)
4. American Superconductor Corporation
5. American Transmission Company, LLC
6. Atlanta Gas Light Company; Chattanooga Gas Company; Virginia
Natural Gas, Inc.
7. Blue Ridge Power Agency; East Texas Electric Cooperative
8. Bonneville Power Administration
9. Central Maine Power
10. Connecticut Department of Public Utility Control
11. Duke Energy Trading Group, which includes:
Algonquin Gas Transmission Company
East Tennessee Natural Gas Company
Texas Eastern Transmission, LP
12. Duquesne Light Company
13. Dynegy Power Marketing, Inc.
14. Edison Electric Institute (EEI),* including
EEI Alliance of Energy Suppliers
EEI Transmission Group
15. Electric Power Supply Association
16. Exelon Corporation, on behalf of its public utility
subsidiaries:
PECO Energy Company
Commonwealth Edison Company
17. Interstate Natural Gas Association of America (INGAA)*
18. LegalNetWorks, Lee M. Zeichner
19. Leggett, Nickolaus E., Independent Technology Analyst
20. Maine Public Utilities Commission
21. Member Systems (members of the Transmission Owners Committee for
the Energy Association of New York State), includes:
Central Hudson Gas and Electric Corporation
Consolidated Edison Company of New York, Inc.
LIPA
New York State Electric & Gas Corporation
Orange and Rockland Utilities, Inc.
Rochester Gas and Electric Corporation
Power Authority of New York
22. Michigan Public Power Agency; Michigan South Central Power
Agency
23. MidAmerican Energy Company*
24. Mid-Continent Area Power Pool (MAPP), based on survey of MAPP
members
25. National Association of Regulatory Utility Commissioners (NARUC)
26. National Grid
27. National Hydropower Association (NHA) (non-public filing)
28. National Rural Electric Cooperative Association (NRECA)
29. Utilities Commission, City of New Smyrna Beach, Florida
30. New York State Public Service Commission
31. New York Attorney General, Eliot Spitzer
32. NiSource Pipelines, consisting of:
Columbia Gas Transmission Corporation
Columbia Gulf Transmission Company
Crossroads Pipeline Company
Granite State Gas Transmission, Inc.
33. North American Electric Reliability Council (NERC)
34. North Carolina Electric Membership Corporation
35. Oklahoma Gas and Electric Company
36. OMB Watch
37. PJM Interconnection, L.L.C., PJM arranges filings required of
the Mid Atlantic Area Council, such as form 715. PJM's responses
pertain to PJM data and MAAC data.
38. Platts, a division of the McGraw-Hill Companies
39. Process Gas Consumers Group; American Forest & Paper
Association; American Iron and Steel Institute; Georgia Industrial
Group; Florida Industrial Gas Users; Industrial Gas Users of
Florida; United States Gypsum Company; Collectively, ``the
Industrials''
40. Public Citizen Litigation Group
41. Public Utilities Commission of Ohio; Oklahoma Corporation
Commission; Michigan Public Service Commission
42. Public Utilities Fortnightly
43. Public Utility District No. 1 of Chelan County, Washington*
44. Reliant Energy HL & P
45. Reliant Resources, Inc.
46. Reporters Committee for Freedom of the Press
47. Southern California Edison Company
48. Southern Company Services, Inc., acting for itself and as agent
for:
Alabama Power Company
Georgia Power Company
Gulf Power Company
Mississippi Power Company
Savannah Electric and Power Company
Southern Power Company
49. Washington Legal Foundation, along with Economic Freedom Law
Clinic, George Mason University of Law
50. Williston Basin Interstate Pipeline Company*
* Filed both public and non-public responses.
[FR Doc. 02-23302 Filed 9-12-02; 8:45 am]
BILLING CODE 6717-01-P